What are the Contingent Fees in a New York Medical Malpractice Case?

New York's Judiciary Law Section 474-A provides that in a medical malpractice case the attorney's fee is 30% of the first $250,000 of the "net sum" recovered. For the next $250,000 recovered, the fee is 25%. For the next $500,000 recovered the fee is 20%. For the next $250,000 recovered the fee is 15%. After that for any amount recovered over $1,250,000 the fee is 10%. The "net sum" recovered is the gross amount of the judgment or settlement, minus the amount of money the attorney has laid out for the expenses of the case. The expenses usually include fees for expert witnesses, court filings, transcripts, subpoenas, medical records and other similar expenses. As an example, if there is a gross settlement of $1million and expenses of $50,000, the fee would be calculated as follows: $1 million minus $50,000 equals $950,000 (the net sum recovered). 30% of the first 250,000 = 75,000 25% of the next 250,000 = 62,500 20% of remaining $450,000 = 90,000 Total fee = 227,500 Net to client = $772,500

Is an Expert Required in Order to File a Complain in a New York Medical Malpractice Case?

Yes. Pursuant to New York Civil Practice Law and Rules section 3012-A, a certificate of merit must accompany the complaint which states that the attorney for the plaintiff has consulted with an expert physician and that on the basis of that expert review, there is a reasonable ground for the commencement of a medical malpractice case. If there is insufficient time to obtain this medical review before the statute of limitations expires, then the attorney can state that in the certificate and later file a supplemental certificate when the expert review has been obtained.

What is a Notice of Medical Malpractice in New York?

Pursuant to section 3406 of the NY Civil Practice Law and Rules, the notice of medical malpractice action is a mandatory form that must be filled by the plaintiff with the clerk of the Court within 60 days of the service of answers by all defendants

What is the statute of limitations for a medical malpractice case in New York?

Answer: Pursuant to section 214-a of the NY Civil Practice Law and Rules, the basic medical malpractice statute of limitations is 2 and ½ years from the date of the malpractice or the last date of continuous treatment by the physician or hospital sought to be held responsible for the same injury or condition that gave rise to the malpractice. This statute of limitation applies to private physicians, hospitals, nurses and other health care providers.

What is the statute of limitations for medical malpractice by New York City Health and Hospitals Corporation? (NYCHHC)

Answer: There are special rules applicable to malpractice by public hospitals run by the New York City Health and Hospitals Corporation, such as Bellevue, Jacoby, Elmhurst, Metropolitan, Lincoln and others. Pursuant to Section 7401 of the NY Unconsolidated Laws, a medical malpractice lawsuit against the NYCHHC must be commenced within one year and ninety days. There is also the requirement that a notice of claim be filed with NYCHHC within ninety days in conformity with NY General Municipal Law 50-e.

What is the statute of limitations for a malpractice in failing to diagnose cancer?

Answer: Section 214-a of the NY Civil Practice Law and Rules provides that the statute of limitations for cancer misdiagnosis is 2 and ½ years from the date that the cancer was diagnosed, or that the patient should have known of the diagnosis of cancer. This is a special provision applicable only to cancer that measures the 2 and ½ years from the date of discovery of the cancer, rather than the date of misdiagnosis. This provision was added by the legislature to remedy the situation where a misdiagnosis is made and the patient is unaware of the cancer for a prolonged period of time until it is discovered.

What is the statute of limitations for medical malpractice that causes the wrongful death of the patient?

Answer: When medical malpractice causes the death of the patient, there is a claim for the patient's injuries, pain and suffering up to the time of death, that is governed by Section 214-a of the NY Civil Practice Law and Rules, which provides for a 2 and ½ year statute of limitations measured from the date of the malpractice, the last date of continuous treatment, or in the case of cancer misdiagnosis, from the date of discovery of the cancer. There is also a separate claim for the wrongful death of the patient. Pursuant to Section 5-4.1 of the NY Estates, Powers and Trusts Law, the claim for wrongful death must be brought within 2 years from the date of death by the legal representative of the patient's estate, e.g, an executor or administrator.

Surgical Black Box Helps Prevent Errors & Medical Malpractice

Several states throughout the country have bills pending which would give patients the right to have surgical procedures videotaped or otherwise recorded. One such bill, called Raina’s Law, is being considered in New York and is named after a woman who died during surgery as a result of anesthesiologist negligence. Another, Assembly Bill 255 or the Julie Ayer Rubenze Law, is being considered in Wisconsin. That bill is named after a young woman who also died due to anesthesia complications during surgical procedures.

The bills aim to help prevent surgical errors and to make it easier for patients and their families to pursue malpractice claims when mistakes happen. However, while these bills could have an impact if states pass these laws, some are concerned action on the state level is not sufficient to prevent surgical errors.

The Hill recently published an article by the brother of Julie Ayer Rubenze, for whom the proposed Wisconsin law is named. He argues federal lawmakers should make several fundamental changes applicable to the entire country to bring down the rate of injuries and fatalities during surgical procedures.

Proposed Laws and Legal Changes to Prevent Surgical Errors

The brother of the Wisconsin woman killed during surgery met with the Wisconsin State Representative who introduced the bill named after his sister, which is also being called the “Surgical Black Box Bill.” The bill is being called the “strongest patient safety bill in generations,” because it allows all data obtained on the video recording to be used in a court of law.

The data from the video recording would also be used by disciplinary boards so bad doctors could be identified. However, if it goes into effect, it would only impact Wisconsin- and if New York’s law goes into effect, it would only protect patients in New York. At the federal level, and in other states, patients would continue to be limited in their ability to understand what goes on during their surgical procedures.

CNN reports surgical “black boxes” are currently under development, and could even go beyond just simple video cameras to make a major impact on patient safety. These black boxes would use microphones and cameras to record interactions among surgical staff, communications among medical providers, and actions of the surgeon performing the procedure.

Patients nationwide should be provided with the right to have these black boxes used in operating rooms if they wish to understand what surgeons are doing during procedures and patients nationwide should be able to use the information recorded on these videos when problems occur during surgery.

The brother of the Wisconsin woman also argues certain other changes need to be made on the federal level to positively impact patient care during surgeries. For example, a national provider database should be created so patients can research the history of their surgeons and a national tracking system should be created for doctors who are found liable for malpractice. Doctors who lose their license in one state are currently resurfacing in other states as well, with patients unaware their doctor has made serious mistakes in the past.

While Federal laws dealing with malpractice in general might sound attractive, there are powerful anti-plaintiff forces in Congress that might seek to tie such measures to limitations on damages . For the moment at least, it is probably in the interest of patients to have this issue dealt with on a state by state basis.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney